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Three years after submitting its proposed revisions to the Office of Management and Budget, the Office of Federal Contract Compliance Programs announced yesterday that it has finally received approval for its revised Scheduling Letter and Itemized Listing. Although the OFCCP's official announcement highlights some of the changes, only a detailed review of the new documents released today reveals all of the changes effective immediately for contractors who receive a new scheduling letter noticing a new compliance review.
CHANGES TO SCHEDULING LETTER
• Reference to 41 C.F.R. Part 60-250 has been eliminated. (This is the portion of the Vietnam Era Veterans' Readjustment Assistance Act regulations that was rescinded as outdated.)
• The OFCCP made non-substantive, or stylistic, changes to the text of the letter.
• A warning has been added, stating that failure to preserve records through the final disposition of the compliance review "constitutes non-compliance."
• The OFCCP changed its language affirming that the information submitted would be treated "as sensitive and confidential to the maximum extent permitted under the Freedom of Information Act." Now, the OFCCP simply "assures" contractors that any disclosures the agency makes will be "consistent with the provisions of" the FOIA.
CHANGES TO ITEMIZED LISTING
Section 503 & VEVRAA
New sections requiring submission of information related to compliance with the new regulations implementing Section 503 of the Rehabilitation Act and VEVRAA were added to the Itemized Listing. Specifically, contractors will be required to provide the following:
• Results of the contractor's evaluation of its outreach and recruitment efforts to identify and recruit qualified individuals with disabilities and protected veterans.
• Documentation of all actions taken to comply with the audit and reporting system requirements.
• Documentation of the figures required in the Data Collection Analyses for the preceding AAP year, and if you are more than six months into your current AAP year, documentation of these figures for at least the first six months of your current AAP year.
• The utilization analysis for individuals with disabilities, and if you are more than six months into your AAP year, current year progress toward this goal.
• Documentation of the hiring benchmark adopted for protected veterans, and if you are more than six months into your current AAP year, current year progress toward the benchmark.
• The most recent assessment of personnel processes and physical and mental qualifications, including the dates the assessments were performed, any actions taken or changes made as a result of the assessments, and the dates of the next scheduled assessments.
Compensation Information
With respect to compensation data, contractors will have to provide individualized rather than aggregated employee data, but the information will be provided as of the date of the AAP rather than February 1, as was proposed. The individualized data must include job title, job group, and EEO-1 category.
The data must include base salary or wage rate and hours worked in a typical workweek. "Other compensation or adjustments to salary such as bonuses, incentives, commissions, merit increases, locality pay or overtime should be identified separately for each employee." Of course, the OFCCP encourages contractors to provide any other information that may determine employee compensation, such as education, past experience, location, performance scores, department, and salary grade.
The OFCCP further requests that documents and policies relating to compensation practices be provided.
Compensation data must be provided electronically, if it is maintained by the contractor in an electronic format that is useable and readable.
Employment Activity Data
Contractors will still be allowed to provide employment activity data – for example, applicants, hires, promotions, and terminations – by job group or job title. (The proposal would have required use of job title in all cases.) Employment activity data will have to be provided by individual racial group instead of by "non-minority" or "minority," as has been allowed before now.
Other Policies and Documents
In addition to providing any collective bargaining agreements, contractors will now have to submit "any other documents you prepared, such as policy statements, employee notices or handbooks, etc. that implement, explain, or elaborate on the provisions of the collective bargaining agreement."
Contractors will also have to provide policies related to reasonable accommodations, and documentation of any accommodation requests received and their resolution.
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OFCCP ANNOUNCES NEW SCHEDULING As anticipated, the OFCCP's new Scheduling Letter & Itemized Listing have been published. Are you prepared to receive that 30-day letter in your mailbox?!? For details of what the OFCCP will expect during a compliance review in light of the changes, please join us for a webinar that will discuss all of this, plus more:
Wednesday, October 15, 2014 |
SUMMARY
The OFCCP characterizes these changes as "limited" and claims they will "reduce the cost and burden imposed on contractors." The OFCCP also states that the OMB-approved Itemized Listing "substantially reverts to the 2008 Itemized Listing." Despite what the OFCCP says, it is obvious that significant and material modifications have been made. These changes will undoubtedly increase contractors' burdens in submitting AAPs for audit. Unfortunately, it appears that neither the OFCCP nor the OMB was persuaded by comments from the contractor community explaining that many of the proposed changes were unreasonable or overly burdensome.
Indeed, the only proposed changes that appear not to have been incorporated into the approved version are the requests for (1) all employment leave policies, including sick leave, medical leave, personal leave, leave for pregnancy, leave for pregnancy-related conditions, leave for religious holidays and observances, leave under the Family and Medical Leave Act, and other leaves of absence; and (2) the VETS-100 and/or VETS-100A Reports for the past two years.
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.
For a printer-friendly copy of this Affirmative Action Alert, click here.